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Tuesday, 23 February 2016

AG Bot on the right of communication to the public in rehabs and the need for a 'transmission': is the end of Svensson in sight?

After hotels [here], dentist waiting rooms [here], and spas [here], it is now the turn of rehabilitation centres.

This morning Advocate General (AG) Yves Bot made a comeback to the copyright scene and issued his Opinion in Reha Training, C-117/15.

This is a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) from the Landgericht Köln (Regional Court, Cologne), seeking clarification on - guess what (once again) - the right of communication to the public. 

This German court is essentially asking essentially whether [the questions in full can be accessed here]:
  • the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre falls within the scope of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directive;
  • and the concept of ‘communication to the public’ for the purposes of those two provisions must be given a uniform interpretation.
This reference has been made in the context of litigation between Reha Training (which operates a rehabilitation centre) and collective management organisation GEMA, arisen further to Reha Training's refusal to pay a licence fee in connection with the making available of protected works on its premises.

An opportunity for clarity

The AG noted at the outset how the CJEU has been asked on several occasions to interpret the concept of 'communication to the public', to which it has given a broad interpretation. 

To that end the Court has identified four assessment criteria:
  1. the existence of an ‘act of communication’ for which the role of the user is indispensable;
  2. the communication of a protected work to a ‘public’;
  3. the ‘new’ character of that public;
  4. and the ‘profit-making’ nature of the communication (according to the AG this is not however an essential condition).
The present case gives the Court an opportunity to reiterate and clarify its case-law on this subject, and this is why it will be decided as a Grand Chamber, with a composition of at least 11 judges presided over by the President instead of the usual chamber of 3 or 5 judges.

Like uniforms?
AG Bot does too
Uniform interpretation of the notion of 'communication to the public'

The AG began his analysis by considering whether the notion of 'communication to the public' should be the same in relation to different directives, ie the InfoSoc and the Rental and Lending Rights Directives.

Despite having different natures in the sense that - among other things - the right of communication to the public in the InfoSoc Directive is preventative while the right of communication to the public in the Rental and Lending Rights Directive is compensatory, the two notions of 'communication to the public' do not constitute a sufficient reason to justify recourse to different assessment criteria.

The Opinion does not really say why that should be the case, if not to satisfy the requirements of unity and coherence of the EU legal order and because in the past the CJEU has applied criteria referring to the InfoSoc Directive to cases relating to the Rental and Lending Rights Directive.

Both directives relevant in this case

The AG then addressed whether in a case like the one at hand the concept of ‘communication to the public’ must be assessed in the light of Article 3(1) of the InfoSoc Directive or in the light of Article 8(2) of the Rental and Lending Rights Directive.

He concluded that both are relevant, as not only the rights of authors as guaranteed by Article 3(1) of the InfoSoc Directive but also the rights of performers and phonogram producers as guaranteed by Article 8(2) of the Rental and Lending Rights Directive are at stake.

Availability of TV broadcasts in rehabilitation centres as an act of communication to the public

The AG subsequently turned to addressing whether a situation in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes it possible for television programmes to be viewed and heard by its patients, constitutes a ‘communication to the public’.

To answer this question, the AG considered the four assessment criteria listed above, held the vewis that in Del Corso the CJEU took a "strict approach", and concluded (unsurprisingly, in this Kat's view) that the case at hand is one in which the right of communication to the public is a stake. 

Can the mere possibility of accessing
the salami suffice
to calm Bertie's hunger?
Is transmission needed?

In this Kat's own opinion something fairly interesting is said at paragraphs 46 and 47 of the Opinion. 

First the AG noted how in relation to the '‘act of communication’, emphasis must be placed on the indispensable role of the user, who must act intentionally. 

Secondly, "the concept of ‘communication’ must be construed broadly as covering any transmission of a protected work, irrespective of the technical means or process used." 

This is interesting because in Svensson [Katposts here] - a case that the AG did not consider in his analysis - the CJEU appeared to reject the idea that a 'transmission' is actually needed for a link to be considered as falling within the scope of Article 3(1) of the InfoSoc Directive, in favour - instead - of the mere possibility that a link allows access to a work. 

At para 19 of its Svensson judgment, the CJEU stated in fact that it is sufficient that the “work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity”.

This Kat suspects that this Reha Training case is less niche than what it seems, and may actually serve to inform and influence - first - the AG Opinion and - secondly - the Court's decision in another case currently pending, ie GS Media [linking to unlawful content, on which see here and here].

Is a revirement of the approach to linking and copyright in the post-Svensson era in the air? The last word appears indeed yet to be spoken.

Stay tuned!

1 comment:

Matej Gera said...

In my opinion, I wouldn't give that much weight to the part of the opinion discussing the “communication” concept. Even before Svensson, in the “hotel” cases, the CJEU have already explained that mere possibility to access the work suffices (Case SGAE, C- 306/05, para. 43). Although it is often not specifically cited in later cases (e.g. this is not emphasized in the OSA case, which is similar to “hotel” scenarios), I always did (and still) assume that this reasoning has not been overturned and that “communication” can occur even when in fact there is no “communication” (at least in the “hotel” cases, I do have some reservations to the way the CJEU handled “communication” in the Svensson case). Bottom-line – I don't think AG is saying something new about the concept of “communication”, but rather omitted this nuance when he cited previous case(s).

Matej

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